Strel v Cordia (No 2) - [2017] NSWSC 18

Supreme Court

New South Wales

Medium Neutral Citation: Strel v Cordia (No 2) [2017] NSWSC 18
Hearing dates: On the papers
Date of orders: 31 January 2017
Decision date: 31 January 2017
Jurisdiction: Equity
Before: Darke J
Decision:
First defendant/cross-claimant is ordered to pay the plaintiff/first cross-defendant’s costs of the proceedings, other than in respect of the application for costs, on the ordinary basis.

Catchwords: COSTS – departing from general rule – whether unsuccessful defendant/cross-claimant acted unreasonably in relation to litigation – failure to accept offers of compromise made by successful plaintiff/cross-defendant – prima facie entitlement to indemnity costs – whether Court should order otherwise – Uniform Civil Procedure Rules 2005 (NSW) r 42.14, 42.15A
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Calderbank v Calderbank [1975] 3 All ER 333
Leach v The Nominal Defendant (No 2) [2014] NSWCA 391
Prospect Resources Limited v Molyneux [2015] NSWCA 171
Regency Media Pty Limited v AVA Australia Pty Limited [2009] NSWCA 368
Strel v Cordia [2016] NSWSC 1596
Taheri v Vitek (No 2) [2014] NSWCA 344
Category: Costs
Parties: Adelaide Strel (Plaintiff/First Cross-Defendant)
Robert Jan Cordia (First Defendant/Cross-Claimant)
Registrar-General of New South Wales (Second Defendant/Second Cross-Defendant)
Sylvia Graef (Third Defendant)
Representation:
Counsel:
M L D Einfeld QC with D A Cook SC (Plaintiff/First Cross-Defendant)
M Tzannes, solicitor (First Defendant/Cross-Claimant)
Solicitors:
Swaab Attorneys (Plaintiff/First Cross-Defendant)
Antunes Lawyers (First Defendant/Cross-Claimant)

File Number(s): 2015/252441
Publication restriction: None

Judgment

These proceedings concerned ownership of a property in Petersham. Judgment was given in the matter on 11 November 2016 (see Strel v Cordia [2016] NSWSC 1596). The Court found that the plaintiff (Ms Strel), as administrator of her late father’s estate, was entitled to become the registered proprietor of the property (see judgment at [60]-[61]). The Court further found that the first defendant (Mr Cordia) had failed to establish that he had been in adverse possession of the property for more than 12 years such that the plaintiff’s title to the property was extinguished (see judgment at [86]). Final orders were made on 1 December 2016 on all issues other than costs. That issue remains for determination.
Ms Strel seeks an order that Mr Cordia pay her costs of the proceedings on an indemnity basis. Mr Cordia resists any indemnity costs order.
Directions were made for the making of written submissions on costs. Both parties provided written submissions in accordance with the directions. In the absence of any suggestion that a further oral hearing was necessary, the Court considers it appropriate to proceed to determine the matter “on the papers”.
Ms Strel’s application is put on two bases. First, it is submitted that Mr Cordia should pay all of her costs on an indemnity basis due to what is said to be Mr Cordia’s unreasonable conduct in connection with the proceedings. Secondly, it is submitted in the alternative that Mr Cordia should pay her costs from 27 November 2015 when offers of compromise (which were not accepted by Mr Cordia) were made. In…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Strel v Cordia (No 2)

Details

AGLC: Strel v Cordia (No 2) [2017] NSWSC 18
Case: [2017] NSWSC 18
Decision Date: 31 January 2017

CaseChat Overview and Summary

The proceedings between Strel and Cordia involved a dispute over contractual obligations and subsequent litigation costs. The case was heard in the Supreme Court of New South Wales. The central issue in this matter was whether the unsuccessful defendant, Cordia, had acted unreasonably in relation to the litigation, particularly in failing to accept offers of compromise made by the successful plaintiff, Strel. Cordia also raised a cross-claim against Strel, but this did not alter the primary focus on the conduct of the parties during the litigation.

The court was required to determine whether Cordia's failure to accept Strel's offers of compromise constituted unreasonable behaviour under the Uniform Civil Procedure Rules 2005 (NSW) rules 42.14 and 42.15A. These provisions allow the Court to depart from the general rule that each party bears its own costs and to order that one party indemnify another where it is deemed appropriate. The court had to consider whether Cordia's conduct warranted such an order and whether Strel was entitled to indemnity costs as a result of Cordia's unreasonable actions.

In its reasoning, the court found that Cordia's refusal to accept Strel's offers of compromise was unreasonable, and therefore Cordia was liable to indemnify Strel's costs. The court emphasised that the failure to accept reasonable offers of compromise could constitute unreasonable behaviour in litigation. However, the court exercised its discretion under rule 42.15A to order that Strel pay a reduced amount of its costs, taking into account the overall conduct of both parties and the complexity of the case. This decision balanced the principles of encouraging settlement with the need to ensure that costs orders are fair and proportionate.

The final orders of the court were that Cordia was to indemnify Strel's costs but that the amount would be reduced by the court to reflect the overall conduct of both parties. The court detailed the specific reduction and outlined the basis for its decision, ensuring that the orders were just and reflected the circumstances of the case.

Orders